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Sunday, February 7, 2010

It is nothing short of astounding that Harold Comer was assigned by the court to be Hank Skinner's lead counsel. Comer, after all, had spent a portion of his previous career attempting to throw Hank in jail rather than keep him out. In an earlier career, Harold Comer had been the elected District Attorney for Gray County, and Hank Skinner had a checkered past.

Hank's two non-violent felonies would in fact be used against him in the death-penalty phase of the trail. Comer had earlier prosecuted Hank for those very felonies, and would now have to defend him against them.

Harold Comer's transition from Hank's prosecutor to Hank's defender was -- well -- shall I say -- blemished. Yeah, that's it, blemished. It seems Comer had been run out of the District Attorney's office because he embezzled substantial quantities of drug forfeiture funds, and because he was himself addicted to drugs. One failing was undoubtedly tied to the other, and neither was of inconsequential magnitude. After he was ejected from his job, the IRS tagged him with a $90,000 bill for unreported taxes.

Comer needed to find honest work, and he needed to find it quickly. Luck was on his side: Judge M. Kent Sims had been assigned to handle the trial of Hank Skinner. That wasn't just good news, it was great news. Comer had been a close political supporter of Judge Sims, and sure enough, Sims assigned Comer to represent Hank Skinner.

That was just the break Comer needed, even though, under normal circumstances, the State of Texas didn't pay very well for defending indigent defendants. In Actual Innocence, Jim Dwyer writes "In too many cases, serving as counsel to the indigent is a fast way to join their ranks. For instance, in Mississippi, the maximum amount for non-death penalty cases is $1000 ... In certain rural sections of Texas the limit is $800."

Comer had good reason to expect he would earn somewhat more than the $800 cited by Dwyer in 2003. Hank would be tried in 2005, so there was inflation to be considered. And Palma wasn't necessarily the rural section of Texas of which Dwyer wrote. And, most significantly, Hank's case was a death penalty case. That was the best part. That would bump up the $800 figure by a fair amount.

Still, those adjustments seem inadequate to explain how Harold Comer came to be paid $86,000. It was the largest fee ever paid by Texas to a court-appointed attorney. It simply boggles the mind to think of how much they might have paid him had he defended Hank successfully.

Though to this day he claims otherwise, Harold Comer didn't really seem to give it his best shot. For example, his effort to independently investigate Robert Donnell as the likely culprit was uninspired. He hired Kirvin Roper as his private investigator.

Comer and Roper went way back. When Comer was still District Attorney, Roper worked for him, at least for the office. Comer absolutely knew that Kirvin's work wasn't top notch, because Comer had, as the DA, fired him for incompetence and embezzlement. Now Comer hired him back to check out the violent, knife-wielding, sexually-obsessed uncle.

Kirvin didn't come up with much of anything. He didn't get a copy of Donnell's fingerprints or DNA, best we can tell. He apparently didn't discover that Donnell's truck was seen outside Twila's house that night, or that Donnell repainted the truck and replaced the carpeting almost immediately after the crime. Nor does it seem he learned that Donnell had bragged of killing someone earlier in a bar fight. It's not obvious what, if anything, Kirvin brought to the party.

More significantly though, Comer failed to demand that all the DNA be tested. Hell, he didn't even ask. Nor did he demand that the handprints be tested against Donnell. He would argue later it was all part of a well-conceived strategy: he wanted to make the police look bad because they didn't do the testing voluntarily.

That you for the constructive criticism. The Skinner case was the first I convered on this site. Hopefully my clarity has improved since then. In any case, I'll certainly be conscious of another chance for confusing the reader.